National Security as a Ground of Justification
Module 3: Access to the Internet
National security is frequently relied upon as the justification for an interference with access to the internet, as well as other interferences with the right to freedom of expression.(1) While this may, in appropriate circumstances, be a legitimate aim, it also has the potential to be used to quell dissent and cover up state abuses.
The covert nature of many national security laws, policies, and decisions, as well as the refusal by states to disclose information about particular national security threats, tends to exacerbate this concern. Furthermore, courts and other institutions have often been deferent to the state in determining what constitutes national security. As has been previously noted:(2)
“The use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern. The concept is broadly defined and is thus vulnerable to manipulation by the State as a means of justifying actions that target vulnerable groups such as human rights defenders, journalists or activists. It also acts to warrant often unnecessary secrecy around investigations or law enforcement activities, undermining the principles of transparency and accountability.”
Principle 9(3) of the Declaration of Principles on Freedom of Expression and Access to Information in Africa provides that national security, public order, or public health are legitimate aims for a limitation on freedom of expression, but only if it is prescribed by law and necessary and proportionate. This means that it should:
(a) originate from a pressing and substantial need that is relevant and sufficient;
(b) have a direct and immediate connection to the expression and disclosure of information, and be the least restrictive means of achieving the stated aim; and
(c) be such that the benefit of protecting the stated interest outweighs the harm to the expression and disclosure of information, including with respect to the sanctions authorised.
As set out in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles), developed by a group of experts in international law, national security, and human rights, convened by ARTICLE 19, and endorsed by the then UNSR on freedom of expression:(3)
“(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.
(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.”
Principle 7 goes further to state that the peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties.
Another important principle contained in the Johannesburg Principles is principle 23, which provides that: “[e]xpression shall not be subject to prior censorship in the interest of protecting national security, except in time of public emergency which threatens the life of the country”. As a general proposition, prior restraint of expression is impermissible. The measures described above can often give rise to a prior restraint on content, and consequently have a chilling effect on the enjoyment of the right to freedom of expression.
Similarly, counter-terrorism as a purported justification for network shutdowns or other interferences with access to the internet should also be treated with caution. As noted in General Comment No. 34, the media plays an important role in informing the public about acts of terrorism, and it should be able to perform its legitimate functions and duties without hindrance.(4) While governments may argue that internet shutdowns are necessary to ban the spread of news about terrorist attacks to prevent panic or copycat attacks, it has instead been found that maintaining connectivity may mitigate public safety concerns and help report public order.(5)
At a minimum, if there is to be a limitation of access to the internet, there should be transparency regarding the laws, policies and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and independent and impartial oversight being exercised.